Due Process, part 3

I wasn't intending to spend three different posts on the question of due process but I guess I need to address something else. J.D. Vance published a statement on due process where he says

“To say the administration must observe due process is to beg the question: what process is due is a function of our resources, the public interest, the status of the accused, the proposed punishment, and so many other factors.”

This is not correct. Whether someone receives due process or not is not a function of our resources and it is certainly not up to the decision of the President to define what due process is. Due Process is defined first by the Constitution, then by Congress in legislation, and then by the courts in interpreting it. If we allow the executive branch to define what due process is, then what prevents it from just declaring that they don’t have the resources to grant due process. We could get decisions that deprive persons of “life, liberty, or property” based on public opinion, or social media, or an anonymous blog from Q. It can't work that way.

Remember, due process is intended as a check on the executive’s power. The executive can't decide unilaterally how much of that they want to observe.

The positive thing about J.D. Vance's comments is that at least the administration is now acknowledging that there is such a thing as due process. The President cannot simply decide what he thinks is fair and act on it. But Vance’s statement still falls far short in that he doesn't get to decide how much he wants to limit due process and then call it good.

Just to repeat what I said previously, if the administration wants to deport him, due process requires that they reopen a previous order of a judge forbidding his removal to El Salvador and argue that he is no longer entitled to that. In those arguments they would have the opportunity to prove their allegations that he is a member of MS-13 and has committed certain crimes that make him ineligible for withholding.

They want to dodge that responsibility by publishing accusations on the DHS website and social media. But those statements are not made under oath and not subject to examination and cross examination, etc.

The administration apparently doesn’t want to have to bother with that.